United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Motion to Suppress Evidence
and Request for Franks Hearing (Filing No. 24) filed
by Defendant, Antonio Phillip. Defendant filed a brief
(Filing No. 25) in support of the motion and the government
filed a brief (Filing No. 31) in opposition. The Court held
an evidentiary hearing on the motion on October 29, 2019.
Defendant was present with his attorney, Joseph Howard. The
government was represented by Assistant United States
Attorney, Gregory D. Artis. Omaha Police Officers James Haley
and Robert Branch, Jr. testified for the government.
Defendant testified on his own behalf. Exhibit 1 offered by
the government and Exhibit 101 offered by Defendant were
received by the Court without objection. A transcript (TR.)
of the hearing was prepared and filed on November 14, 2019,
(Filing No. 38), and a redacted transcript was filed on
November 19, 2019. (Filing No. 40). The matter is now fully
submitted to the Court. For the following reasons, the
undersigned magistrate judge recommends that the motion be
Haley and Officer Branch are both Omaha Police Department
Officers assigned to the narcotics unit and are part of the
Omaha metro area drug task force. (TR. 6-7, 45). Near the end
of December 2018, Officer Haley and Officer Branch were
assigned to follow-up on a complaint that Defendant's
seven- or eight-year-old child brought marijuana to school on
two occasions. (TR. 8-9, 46). Officer Haley was the
“point person” for the investigation. (TR. 47).
Officer Haley ran a DataCheck and criminal history check for
Defendant and learned Defendant is a documented gang member
and convicted felon with a prior firearms charge and delivery
of controlled substance charges. (TR. 10, 34). A couple weeks
after receiving the complaint, Officer Haley went to
Defendant's apartment at 4527 Decatur Street to do a
“knock-and-talk” regarding the complaint, but no
one answered the door. (TR. 9).
Haley, Officer Branch, and three other officers wearing
plainclothes, black raid vests labeled “Police, ”
and their badges around their necks returned to
Defendant's apartment in the evening on January 8, 2019,
to again attempt a knock-and-talk to discuss the complaint.
Officer Haley, accompanied by Officer Branch and Detective
Rock, knocked on Defendant's door. (TR. 11-13, 20-25, 52,
Ex. 101). Officer Haley and Officer Branch testified that
neither of them was wearing a balaclava face mask, but one or
two of the other officers may have been wearing a mask to
protect their identities. (TR. 27-28, 35-36, 53). Officer
Haley testified that Defendant initially talked to him
through the closed door, then briefly walked away, and then
came back and opened the door a couple of inches. (TR. 13,
30-31). Officer Branch testified that, to the best of his
recollection, after Officer Haley knocked on the door, Branch
heard shuffling inside, and a couple minutes elapsed before
Defendant cracked open the door and began talking to Officer
Haley. (TR. 54-55). Officer Haley and Officer Branch both
testified that they smelled the strong odor of marijuana
emanating from the apartment when the door was opened. (TR.
16, 48). Officer Haley asked Defendant if officers could step
inside to talk to Defendant so as not to “air
[Defendant's] business out in front of [his]
neighbors” because they were there to discuss
Defendant's children. Officer Haley testified that
Defendant eventually opened the door all the way and let
officers into the apartment by gesturing and saying
“okay” or “come on in.” (TR. 36-38,
41). Officer Branch similarly testified that Defendant
granted officers permission to come inside by opening the
door wider and affirmatively stating something like,
“come on in.” (TR. 55). Both officers testified
that Defendant did not attempt to close the door after
initially opening it. (TR. 15, 31, 56). Officer Haley
testified neither he nor anyone else threatened Defendant or
forced their way into the apartment. (TR. 15-16).
entering the apartment, Officer Haley continued to smell
marijuana and saw children sitting on the couch in the living
room. Officer Haley commented on the odor of marijuana and
Defendant replied, “I told the people at CPS I
smoke.” (TR. 16). Officer Haley talked to Defendant in
the living room while the other officers did a protective
sweep of the apartment to make sure there was no one in the
back bedrooms or bathroom. Officer Branch assisted in the
sweep and testified its purpose was to check for other
people. (TR. 48-49). Officer Branch testified he, Detective
Rock, and another officer drew their sidearms to conduct the
protective sweep, which took approximately one minute. (TR.
58-59). Detective Rock returned to the living room and
reported he saw a spoon with white residue on a dresser in a
bedroom. Officer Haley asked Defendant for consent to search
the apartment, which Defendant denied. (TR. 17-18, 48).
left the apartment and returned after obtaining a search
warrant. The affidavit supporting the warrant generally
includes the information testified to by Officer Haley above,
including that Defendant “let” Officer Haley into
the apartment to talk and that officers found a spoon with
white residue during their entry. (Ex. 1). The officers
executed the search warrant on January 8, 2019, and recovered
marijuana, cocaine, a firearm, and cash. (TR. 18-19).
Defendant was arrested (Ex. 101) and was charged on June 19,
2019, in a four-Count Indictment with possession of
controlled substances and a firearm. (Filing No. 1).
testified regarding the officers' entrance into his
apartment. According to Defendant, in the evening on January
8, 2019, his children told him someone was at the front door.
Defendant answered the door by opening it all the way.
Defendant testified he saw Officer Haley and four other
people, including one wearing a ski mask, standing outside
his door. Defendant testified he became afraid because of the
masked individual, so he tried closing the door, but an
officer put his foot in the doorway and Defendant “was
overpowered” and “pushed back.” (TR. 63-64,
67). Defendant testified Officer Haley did state he wanted to
talk about Defendant's son, but Defendant replied,
“CPS already talked to me about it, ” which
caused Officer Haley to “start, you know, going crazy
basically.” (TR. 64). Defendant testified Officer Haley
never spoke to him through the closed door. (TR. 66).
Defendant further testified he never said “okay”
or “come on in” and did not consent to the
officers entering his apartment. (TR. 67).
officers' interaction with Defendant on January 8, 2019,
was not recorded, as no officer was wearing a body camera.
Officer Haley testified that no one in the task force is
assigned a body camera because of the task force's
frequent undercover operations and covert surveillance. (TR.
argues that when officers first came to his apartment on
January 8, 2019, they unlawfully entered his home without a
warrant or his consent, which resulted in the discovery of
the spoon with the white residue in the bedroom. Defendant
contends that the information obtained during officers'
first unlawful entry into his apartment was used to obtain
the search warrant, and therefore suppression of any items
seized during the execution of the warrant, and his
subsequent statements after his arrest, require suppression
as having been tainted by the illegality. Defendant further
asserts he is entitled to a Franks hearing because
the warrant affidavit contains the false statement that
Defendant “opened the door” and “let”
officers inside. (Filing No. 25; TR. 73-76).
contends he did not consent to law enforcement officers'
initial entry into his apartment. Defendant argues that,
because the search warrant affidavit contains information
obtained by officers during the unlawful entry, all evidence
and statements obtained from the execution of the warrant are
tainted and must be suppressed. Defendant's request for a
Franks hearing is similarly based upon his assertion
that the affidavit supporting the warrant contains the false
factual statement that Defendant “opened the
door” and “let” officers inside. (Filing
with the Fourth Amendment, the knock-and-talk exception to
the warrant requirement permits ‘a police officer not
armed with a warrant [to] approach a home and
knock.'” United States v. White, 928 F.3d
734, 739 (8th Cir. 2019)(quoting Florida v.
Jardines, 569 U.S. 1, 8 (2013)). But, “[a]bsent
consent or exigent circumstances, a private home may not be
entered to conduct a search or effect an arrest without a
warrant.” United States v. Faler, 832 F.3d
849, 853 (8th Cir. 2016). Nevertheless, “Officers may
enter the residence if the officers receive voluntary consent
to enter from a person possessing authority over the
residence.” Id. (citing United States v.
Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006)).
“Voluntary consent may be express or implied.”
Id. It is the government's burden to show, by a
preponderance of the evidence, that consent was freely given
by the defendant. See United States v. Aguilar, 743
F.3d 1144, 1147 (8th Cir. 2014). A defendant's consent is
voluntary if “[i]t was the product of an essentially
free and unconstrained choice, rather than the product of
duress or coercion, express or implied.” United
States v. Morreno, 373 F.3d 905, 910 (8th Cir. 2004).
arguments in this case hinge on the credibility of the
testimony offered during the suppression hearing. Did
Defendant voluntarily “let” or consent to
officers' entry into his apartment, or was the
officers' entry made without his voluntary consent?
Defendant testified under no uncertain circumstances that he
did not consent to officers entering his apartment and that
officers “overpowered” him and “pushed him
back.” Conversely, Officer Haley, an OPD officer for
12-years (TR. 6), and Officer Branch, and OPD officer for
19-years (TR. 45), both testified that Defendant verbally and
nonverbally consented to their entry into the apartment. Both
officers testified that Defendant initially opened the door a
few inches or a “crack, ” and demonstrated
consent for their entry into his apartment by stating
“okay” or “come on in” and opening
the door wider when Officer Haley asked Defendant if they
could speak inside. (TR. 36-38, 41, 55). True, the officers
were unsure of the exact verbiage used by Defendant, but both
were certain Defendant affirmatively stated something that
was the equivalent of “yes” when Officer Haley
asked to speak to Defendant inside. Contrary to
Defendant's testimony, Officer Haley testified neither he
nor anyone else ...